Veterans who receive notice of a C&P exam usually have the same two questions. Why does VA need another examination when it already has years of treatment records, and how much does this one appointment decide?
It decides a great deal. A compensation and pension examination produces the medical evidence a rating specialist uses to determine whether a condition is connected to service and how severely it is rated. The examiner does not grant or deny anything. What the examiner writes, and what the examiner leaves blank, drives the decision that follows.
This article covers why VA schedules these examinations, what happens when a veteran does not attend, how to prepare, and how to review an exam report after the fact.
Why VA schedules an examination it may seem not to need
VA orders an examination when it determines that the evidence already in the file does not have enough information to decide the claim.
Treatment records serve a different purpose. A clinician treating a veteran documents symptoms, treatment and response to treatment. The VA examination uses the rating schedule to determine the level of disability by measuring limitation of motion in degrees, for an assessment of function during a flare-up, and for a medical opinion on whether the condition is related to service. A treatment note rarely contains any of those things, because it was never meant to.
That gap is the reason for the examination. It is also why an exam can feel redundant to a veteran who has been treated at VA for years.
Where a claim was denied for lack of a medical link between the condition and service, the same gap is usually what an appeal has to close. Our discussion of how to approach challenging VA disability claims covers what that evidence has to establish.
What happens if a veteran does not attend a scheduled VA examination
Under 38 CFR §3.655, when entitlement cannot be established without a current examination, and a claimant fails to report without good cause, the consequence depends on the type of claim.
- Original claim, supplemental or claim for increase the claim shall be rated based on the evidence of record.
- Other original claim, a supplemental claim for a claim that was previously disallowed, or a claim for increase, the claim shall be denied.
- Running award, VA issues a pretermination notice and allows 60 days to respond before reducing or discontinuing the award.
The middle row is the one that matters to most veterans reading this. A veteran pursuing a supplemental claim after a denial is not in the category where VA proceeds on the existing record. In that category the regulation directs denial.
Good cause exists for reasons such as illness, hospitalization or a death in the immediate family, but it has to be raised with VA rather than assumed. A veteran who cannot attend should contact VA to reschedule before the appointment date.
What the examiner does and what the rating specialist does
Two different people handle a claim at this stage, and they have different jobs.
The examiner conducts the examination and records findings, usually on a Disability Benefits Questionnaire, a standardized form for each body system. Since April 2020 VA has not made most of these forms publicly available, though VA examiners and contracted clinicians continue to use them.
The rating specialist then applies the rating schedule to those findings and issues the decision. The examiner has no role in that step.
The examination may be conducted by a VA clinician or by a contracted provider. VA states that contract clinicians follow the same medical training and licensing standards as its own providers, and that it uses them to complete examinations more quickly. In either case the clinician is producing evidence for a rating specialist. No treatment relationship is created by the appointment.
Preparing for the examination
A veteran does not need to bring records to the appointment. VA’s guidance is that nothing needs to be brought, with one exception worth acting on. New non-VA medical records, such as records from a recent surgery or illness, should be submitted to VA before the appointment rather than handed to the examiner. Evidence given to a clinician in the examination room does not reliably reach the claims file.
The preparation that matters is accuracy about severity. Veterans frequently describe their condition as it is on an average day, because that is how people answer a medical question politely. The rating criteria are not written around average days.
For musculoskeletal conditions, 38 CFR §4.40 states that a part which becomes painful on use must be regarded as seriously disabled, and that weakness is as important as limitation of motion. Function during a flare-up is part of what the rating schedule measures. A limitation the examiner does not record cannot be rated.
Describing specific lost activities is generally more useful to a rating specialist than describing pain in the abstract, because pain is difficult to compare between individuals while lost function is not.
Examinations for traumatic brain injury
Traumatic brain injury examinations are structured differently. Under diagnostic code 8045, VA evaluates ten facets: memory, attention, concentration and executive functions, which together form a single facet; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness.
Each facet receives a level, and the highest single facet level determines the entire evaluation. The levels do not convert to percentages in the way most veterans expect.
| Highest facet level | Evaluation assigned |
|---|---|
| 0 | 0 percent |
| 1 | 10 percent |
| 2 | 40 percent |
| 3 | 70 percent |
| Total | 100 percent |
There are no intermediate steps between those figures. A single facet recorded one level below the veteran’s actual impairment can change the evaluation by thirty percentage points.
Two practical points follow. A family member who observes the veteran daily may be able to describe cognitive changes the veteran cannot report about himself, and should attend if the examiner permits it. And several of the facets cover ground a veteran would not associate with a head injury, so questions that seem unrelated generally are not.
When VA schedules a second examination for the same condition
A second examination for the same condition is most often a request for clarification rather than an indication of the likely outcome. VA reviewed the first report, found that it did not address everything the rating specialist needed, and ordered another.
The usual reasons are procedural. A required field on the questionnaire was left blank. The medical opinion stated a conclusion without the reasoning behind it. New evidence arrived after the first examination. Or sufficient time passed that current severity has to be measured again.
The second examination should be attended and prepared for the same way as the first. A represented veteran can ask their attorney to determine from the VA why the second examination was requested, which usually identifies the specific question the rating specialist still considers unanswered.
The three questions to ask about an exam report
Our attorneys review the exam report after a client attends an examination, and the review comes down to three questions.
Was the examination favorable? Do the recorded findings and the medical opinion support the claim, or do they undercut it?
Was the examination adequate? Does the report contain enough detail, and is the diagnosis supported by the findings actually recorded?
Did the examiner address everything VA asked? VA sends the examiner specific questions. A question left unanswered becomes a gap the rating specialist has to resolve without further evidence.
The second question has a regulatory basis that is worth knowing about. 38 CFR §4.2 provides that “if a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”
The obligation to return an inadequate report rests with VA. Where a claim was denied on the strength of a report that did not meet that standard, the adequacy of the examination is itself a ground that can be raised.
The answers to those three questions are what shape the plan for the claim, including which appeal route fits and what additional evidence is needed. That is the same review a veteran can begin on their own by requesting the report and reading it against the questions VA asked.
One pattern is worth naming because it recurs. A medical opinion that concludes a condition is unrelated to service solely because the condition is not noted in the service treatment records. Absence of a record or failing to document an injury and absence of a condition are not the same thing, and an opinion resting on that alone often does not contain the reasoning the regulation contemplates.
Where the examination fits in an appeal
Once a decision rests on a C&P exam, that examination is evidence that can be addressed rather than a finding that has to be accepted.
Which route fits depends on what the report says. Where the report shows a genuine evidentiary gap, a supplemental claim supported by new and relevant evidence is often the route, frequently supported by a private medical opinion that performs the analysis the VA examiner did not. The standard that evidence has to meet is discussed in our article on 38 CFR §3.156.
Where the argument is that the examination itself was inadequate under 38 CFR §4.2, that is a question about the decision rather than about the evidence, and it can be raised at the Board and, if necessary, on appeal to the Court of Appeals for Veterans Claims.
Examinations also determine outcomes in two areas veterans often overlook. In claims for secondary service connection, the examiner is asked whether one service-connected condition caused or aggravated another, and that is frequently the question left unanswered. In claims for total disability based on individual unemployability, the examiner’s description of occupational limitations carries substantial weight.
Frequently Asked Questions
I already receive treatment at VA. Why do I need to attend an examination?
VA has determined that it needs additional information before moving forward with the claim. Treatment records document care rather than the specific findings the rating schedule requires. If VA determines an examination is needed and the veteran does not attend, VA can deny the claim or find that the claim was abandoned.
What do I need to do to prepare for the examination?
Records do not need to be brought to the appointment. The examiner is expected to review the claims file as part of the examination. New non-VA records should be submitted to VA beforehand. Attend the scheduled examination and answer the questions accurately, including questions about function on difficult days.
VA has scheduled a second examination for the same claim. Do I still need to attend?
Yes. VA may have reviewed the first report and determined that the medical opinion required clarification, or that the first examination did not answer everything VA needed answered. Attending every scheduled examination avoids a denial for failure to report. A represented veteran can ask their attorney to determine from VA why the second examination was requested.
Can I see a copy of the exam report once VA has completed it?
Yes. The report is requested from VA on VA Form 20-10206, not from the examiner. A represented veteran can have their attorney obtain it and forward it directly.
What happens after I attend a C&P exam?
The examiner uploads the completed report to the claims file. Once VA has received it, the claim moves to the next step, and a decision can be issued.
Is a second C&P exam a good sign?
It is generally a neutral sign. A second examination most often reflects a gap in the first report rather than a decision about the claim.
Are C&P examiners VA employees?
Not always. Some examinations are conducted by VA clinicians and many by contracted providers. VA states that contract clinicians meet the same medical training and licensing standards as its own providers.
Why the exam report is worth reading
C&P examinations are a significant tool in deciding claims. VA uses them to gather the information it needs, and the attorneys in our practice group use them as well, because the report determines what an appeal has to address.
A veteran can begin that review without an attorney. Request the report, read it against the three questions above, and note where the examiner did not answer what VA asked. That is usually where a denial becomes something that can be challenged.
Goodman Allen Donnelly is a Virginia-based law firm representing veterans and their dependents in VA disability appeals, with more than 25 years of veterans benefits experience across the team. Veterans and their dependents are the only clients the firm represents.
If you have undergone a C&P exam and received a decision you would like assistance in appealing, or you have an ongoing appeal for which you would like representation, Goodman Allen Donnelly offers a free consultation for veterans and their families.
About The Author
This article was contributed by Nancy Foti, Managing Partner of Goodman Allen Donnelly. With over 20 years of experience, Nancy has represented disabled veterans and their families before the Department of Veterans Affairs, the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. She clerked for the Honorable Ronald Holdaway of the U.S. Court of Appeals for Veterans Claims and previously served as a staff attorney with the National Veterans Legal Services Program.